owner cannot recover damages on account of a change of grade occasioned by the construction of a viaduct in the street. Colclough v. City of Milwaukee, 92 Wis. 182 (65 N. W. Rep. The court say: 1039). 66 It was held in Harrison v. Board, 51 Wis. 647, 662 (8 N. W. Rep. 731), to be the settled law in this state that in the absence of any law giving the owners of real estate adjoining a public street or highway a right to recover damages of the city, village, town or county in which the same is situated, on account of the change of the grade of such street or highway, no damages can be recovered on account of such change, unless the premises of the adjoining or abutting owner have been injured through the negligence of the municipality or its agents in making such change, and that such change of grade is not, in any case, the taking of private property for public use." Citing, Watkins v. City of Milwaukee, 55 Wis. 340 (13 N. W. Rep. 222); Buchner v. Railway Co., 60 Wis. 271 (19 N. W. Rep. 56); Smith v. City of Eau Claire, 78 Wis. 457 (47 N. W. Rep. 830); Drummond v. City of Eau Claire, 85 Wis. 562 (55 N. W. Rep. 1028); Alexander v. City of Milwaukee, 16 Wis. 248; Dore v. City of Milwaukee, 42 Wis. 108; Radcliff v. Mayor, etc., 4 N. Y. 195 (53 Am. Dec. 357); Skinner v. Bridge Co., 29 Conn. 536; Hill v. Boston, 122 Mass. 344, 348 (23 Am. Rep. 332); Slatten v. Railroad Co., 29 Ia. 149 (4 Am. Rep. 205); Uline v. Railroad Co., 101 N. Y. 99 (4 N. E. Rep. 536); Rauenstein v. Railroad Co., 136 N. Y. 523 (32 N. E. Rep. 1047; 18 L. R. A. 768); Transportation Co. v. Chicago, 99 U. S. 635. In some of the states a different rule prevails. Cohen v. Cleveland, 43 O. St. 190 (1 N. E. Rep. 589.)

Sec. 10. Change of grade-Municipality-Measure of damages. Damages occasioned by changing the grade of an established highway need not be ascertained and tendered before the making of the change, such change not constituting a taking of private property for public use within the meaning of the constitution. An action for such damages will only lie upon the failure or refusal of the municipality to ascertain and pay the damages within a reasonable time. Gilpin v. City of Ansonia, 68 Conn. 72 (35 Atl. Rep. 777). A city is not liable for an unauthorized change of grade made by a street

railway company. The mere passage of an ordinance fixing the grade of the street will not be construed as authority to such company to actually change the physical grade so as to render the city liable for damages occasioned thereby. Stritesky v. Cedar Rapids, 98 Ia. 373 (67 N. W. Rep. 271). Under the Missouri constitution, 1875, Art. 2, § 21, it is held that a city without reference to its size or population is liable for damages resulting to abutting property owners from a material change of grade in a street from the natural surface. Cole v. St. Louis, 132 Mo. 633 (34 S. W. Rep. 469). This rule. applies to a change of grade of a country highway. Grover v. Cornet, 135 Mo. 21 (35 S. W. Rep. 1143). Where a city confers power on a contractor to improve a street by raising the grade thereof, such power does not authorize the contractor to put earth upon abutting premises, and where he does so to the injury of the abutting owner, he and not the city, is liable. City of Bloomington v. Wilson, 14 Ind. App. 476 (43 N. E. Rep. 37). In Missouri it is held that the only benefit to the abutting owner which can be deducted from damages sustained by him on account of change of grade in a street, is the direct and peculiar benefit that would result in particular to his property and not the general benefit that his lands would derive in common with the lands of others in his neighborhood. Cole v. St. Louis, 132 Mo. 633 (34 S. W. Rep. 469); Grover v. Cornet, 135 Mo. 21 (35 S. W. Rep. 1143). Where the real estate of an abutting owner has been enhanced in value by the construction of a bridge in the street, he cannot recover damages. Walters v. St. Louis, 132 Mo. 1 (33 S. W. Rep. 441).

Sec. 11. Change of grade-Complaint for damages. Indiana Rev. Stat. 1881, § 3073, provides "that when the city authorities have once established the grade of any street or alley in the city, such grade shall not be changed until the damages occasioned by such change shall have been assessed and tendered to the parties injured or affected by such change, and such damages shall be collected by the city from the party or parties asking such change of grade in the manner provided for the collection of street improvements." It is held that a complaint under this statute for damages on account of a change

of grade is not bad because the ordinance set out is a general one and fixes the grade only at street crossings or that the record of the ordinance has been lost. Keehn v. McGillicuddy, 15 Ind. App. 580 (44 N. E. Rep. 554). Where the change does not amount to the taking of property, damages may be assessed as well after as before it is made. The landowner upon being notified of the proposed change is not bound to make known his claim for damages. Platt v. Town of Milford, 66 Conn. 320 (34 Atl. Rep. 82). Where the complaint sets up facts sufficient to show special damages, it need not contain the conclusion that the plaintiff sustained "special damages." Cook v. City of Ansonia, 66 Conn. 413 (34 Atl. Rep. 183).

Sec. 12.

Change of grade-Injunction to restore. The New York statute, general railroad act of 1850, § 28, sut d. 5, authorizes a railroad company to construct its road "across, along or upon " any street or highway which the route of its road shall intersect, coupled with the obligation to restore the street or highway thus intersected to "its former state, or to such state as not unnecessarily to have impaired its usefulness." Section 24 provides that, at a crossing, the highway "may be carried over or under the track, as may be found most expedient," and, by the same section, power is given to a railroad company to change the line of a highway, "where an embankment or cutting shall make a change in the line of such highway * * * desirable, with a view to more easy ascent or descent," and it authorizes additional lands to be taken by the company for the construction of such new line. Under these statutory provisions it is held that a railroad company has no right to so change the line of a street as to divert travel to the injury of an abutting owner, and that where a railroad company makes such a change to the injury of an abutting owner, a mandatory injunction will lie to compel the restoration of a street. Buchholz v. New York, L. E. & W. R. Co., 148 N. Y. 640 (43 N. E. Rep. 76).

Sec. 13. Change of grade-Construction of statute -Special damages defined. In the matter of the change of a street grade, the Connecticut Gen. Stat., §§ 2703, 2706,

2720 provide that when the adjoining land owner shall sustain "special damage or receive special benefits," the municipality shall be liable for such special damage and be entitled to receive the value of such special benefits; that the benefits and damages are to be ascertained by appraisement and sets out the manner of procedure. Under this statute it is held that the term "special damage" does not have the technical meaning as when used in respect to the rules of pleading, and does not differ from the damages to be assessed for injury in the case of the original appropriation of the easement causing a similar injury. Such damages include the diminution in the value of the land caused by the change. Platt v. Town of Milford, 66 Conn. 320 (34 Atl. Rep. 82). The court say: "The special damage to be appraised on the alteration of the grade in a highway differs in no essential respect from the damage that would be appraised for injury to adjoining land, if the alteration were an original layout, causing a similar injury. Such damage includes the diminution in the market value of the land caused by the alteration, to be determined by considering everything by which that value is legitimately affected." Citing, Holley v. Town, etc., of Torrington, 63 Conn. 426 (28 Atl. Rep. 613); Hoyt v. Telephone Co., 60 Conn. 385 (22 Atl. Rep. 957); Shelton Co. v. Borough of Birmingham, 62 Conn. 456 (26 Atl. Rep. 348). As to elements of damage and admissibility of evidence, see Cook v. City of Ansonia, 66 Conn. 413 (34 Atl. Rep. 183).

Sec. 14. Statutory dedication of streets-Ownership of fee. Missouri Rev. Stat. 1855, p. 1536, § 8, provided that town plats should "be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public use in the county in which such town, village, or addition is situate, in trust, and for the uses therein named, express or intended, and for no other use or purpose." Under this statute it is held that such dedication vests the fee in the abutting owner subject to the public easement. Thomas v. Hunt, 134 Mo. 392 (35 S. W. Rep. 581; 32 L. R. A. 857). The court say: "Under this statue it has been held that the

fee passes from the owner by the dedication. City of Hannibal v. Draper, 15 Mo. 633; Reid v. Board, 73 Mo. 304. It

has also been held that the fee held by the city was subject to the trusts contained therein or intended thereby, from which it could not be diverted. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121; Ferrenbach v. Turner, 86 Mo. 419 (56 Am. Rep. 437). Considering the policy of the law, as before stated, to be that the owners of property abutting on a street own the fee also to the center of the street, subject to the easement, it is clear to us that the statute was intended to effect the same purpose; that is, while the fee passed out of the dedicator, and vested in the county. the public only secured an easement, and the abutting own. ers, respectively, the beneficial right in the land to the center of the street."

Sec. 15. Opening or widening roads - Vacating streets. For damages caused by the opening and widening of roads laid out in townships the county is liable, but the damages must be ascertained and the liability enforced in accordance with the statutes, which give the former and impose the latter. Winner v. Graner, 173 Pa. St. 43 (33 Atl. Rep. 698). The right to complain of the vacation of a street is limited to those persons owning or occupying lands which are adjacent to it or through which it runs. Symons v. San Francisco, 115 Cal. 555 (42 Pac. Rep. 913; 47 Pac. Rep. 453).

ACKNOWLEDGMENTS.

EPITOME OF CASES.

Sec. 16. Necessity of acknowledgment and who may make it. Acknowledgment of a deed is not necessary to its sufficiency as between the parties thereto. Harrass v. Edwards, 94 Wis. 459 (69 N. W. Rep. 69). Mass. Pub. Stat., ch. 120, § 6, which provides that "the acknowledgment of a deed shall be by the grantors or one of them," and ch. 3. § 3, providing that "the word grantor' may include every

6